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Guardian Ad items in Family Law

A guardian ad litem is a Texas family law that fulfills a vital role of advocating for your children's rights and best interests. In a family law case, a parent is not presumed to be acting in the best interests of a child. Your interests may be directly adverse to that of your children in some regards. For instance, if you attempt to win primary custody of your children in a divorce but you have never played much of a role in their lives and do not have any experience caring for your children. The best interests of your children are likely served by naming your spouse as their primary conservator. A guardian ad litem would make assessments like this within their role in your case and make recommendations to the judge.

In a child custody or divorce case, any party to the case or the judge can request that a guardian ad litem be appointed to a case. An attorney can serve as a guardian ad litem, but that is not a requirement. In Texas, court-appointed Special Advocates serve as guardians ad items in child custody, divorce, or Child Protective Services (CPS) cases. The guardian ad litem is an independent position that may or may not be paid by the court. Often, if the CASA volunteer is appointed, then the job will be unpaid.

The guardian ad litem in your Texas family law case will be designated as an officer of the court. This means that they must uphold the constitution of the state of Texas, act in their capacity with a significant amount of respect for the other participants in the case and the judge while being impartial in the execution of their duties. In short, the guardian ad litem is not someone that you should expect to become friends with you or your attorney. You may even feel like this person is distant in their interactions with you. Bear in mind that it is by design.

The judge is tasked with making decisions for your children that are in their best interests. The guardian ad litem acts as the eyes and ears of the court outside of the courtroom. The judge cannot be everywhere at once. Therefore, the guardian ad litem will ensure that the judge is aware of the totality of the circumstances as they see it outside the courtroom. The more information that the judge has, the better. The guardian ad litem will provide information in an unbiased manner for them.

What does it mean to act in the best interests of a child?

We have used a term multiple times so far in today's blog post that I wanted to discuss with you. That term is in the "best interests of your child. This isn't just a vague understanding of what a family court judge believes is for the best when it comes to your kids. Rather, the judge will rely upon a set of recommendations that the Texas Supreme Court came up with within a case called Holley v. Adams. That case is from 1976 and has been utilized countless amounts of times in family law cases.

A family court judge can utilize all, none, or some of these factors when making decisions in your case. Even with these factors in mind, family court judges in Texas are within their rights and, in all cases, must make decisions based on their own experiences as well as the factors outlined in this case and others. An overview of these factors is what I would like to provide you with. That way, you can begin to think about them in the context of your own life and circumstances. How well do you fare in your mind when it comes to the list of factors we are about to list off?

Before you answer that, consider that it is not mandatory to leave all questions of the well-being of your children up to a judge or guardian ad litem, for that matter. Instead, it is within your power to not allow these people to make decisions or recommendations. This can be accomplished by negotiating directly with your co-parent and spouse. The two of you can come up with terms of settlement both in temporary orders and final orders without having the judge or guardian ad litem play a role at all.

If you all set the tone from the beginning of a case that settlements will be reached rather than litigation and courtroom appearances, then a guardian ad litem likely will not be appointed. You see guardian ad items in CPS cases due to the sensitive nature of those cases. However, guardian ad items are not standard in a child custody or divorce case. It is only when extreme circumstances arise or an outright inability of the parties to settle their cases where guardian ad items are appointed. Do not assume that an ad litem will necessarily be selected in your case, no matter what. That is not the norm.

What does your child want?

Family court judges will consider your child's desires first and foremost when determining their best interests. Of course, the court will consider the age and maturity of your child when choosing if they would even be in a position to know what is best for them. A 12-year-old child is certainly better positioned to know what they want and what is in their best interest than a 2-year-old child. However, the family court judge will consider the child's desires in combination with factors like their maturity when making decisions.

What are the emotional and physical needs of your child?

Indeed, every child that goes through a family court in Texas is different. We have all heard about how each of us is as unique as a snowflake and that we are special in our way. This isn't just a nice thing to say that your grandparents may have told you many years ago. It is the truth. All children are made differently, and your child's needs are different than any other child, even in your family. Just because children are close in age or personality does not mean that their emotional and physical needs are the same.

If your child has an emotional need that is better handled and considered by one parent rather than the other, then a court should consider those needs. Additionally, if your child has a physical problem that requires constant monitoring and intervention, then the parent who has variance and taking care of your child in this way ought to have a leg up over the other parent when it comes to being named primary conservators. Finally, as her children's physical and emotional needs change over time, should a family court judge consider this. Imagine the challenges of understanding a young child's physical and emotional needs and then anticipating what those needs are likely to be as your child ages. This is the responsibility of a family court judge.

Next, a judge will also consider whether or not your child is in physical or emotional danger currently or will be in the future. This is especially relevant in CPS cases where you or your Co-parent is accused of having abused or neglected your child. Frequently these are the type of cases where guardians ad items play a central role. Imagine a situation where you have done everything you could to protect your children, but they have had a history of being harmed at the other parents' home. That is the job of the guardian ad litem to assist the judge and understand this.

The parenting abilities of you and your Co-parent

This one should be self-explanatory, but it is essential nonetheless. People ask all the time why it is that family law cases more typically see mothers being named as primary conservators than fathers. It is even assumed that the Texas family code favors mothers over fathers explicitly. However, you may be surprised to learn that no such language is contained in the Texas family code. The Texas family code explicitly states that no preference is to be given as to the sex of either parent when it comes to making determinations conservatorships issues.

However, the idea that women are better positioned than men to be named primary conservators may be accurate. However, this has to do more so with the fact that women more often than men fulfill specific roles when it comes to the life of their children. For example, if your family is like San Andreas many others, then if you are a father, you more frequently would be the parent who works to meet your family's financial obligations. On the other hand, your spouse may be in a position where she takes care of the day-to-day parenting responsibilities of your child more readily.

Therefore, your spouse has more experience in taking care of their children, getting them to school, taking care of them after school, cooking, taking them to doctor's visits, and performing the other day-to-day operations. This does not mean that you are deficient as a parent or that you are not a good parent. However, it does mean that you have not had the experience caring for your child that would position you better in this regard. When a guardian ad litem intervenes in a case, they recommend a family court judge based on these circumstances.

What programs are available to assist you and your Co-parent in promoting the best interests of your children?

This isn't an important but not frequently considered factor by people going through family law cases. However, especially if you are involved in a CPS case, it is crucial to be aware of any programs or support groups in your area that can help you promote your children's best interests. Consider the educational needs of your children. If there is a group that assists you with caring for your children I aiding them in making adjustments in the classroom, you should be able to reach out to these groups for help in promoting your child's well-being and their education.

Parents do not have to have all the answers. And in fact, no parent has all the answers. However, taking advantage of many programs available to you is a sign of maturity and a sign that you are willing to put the best interests of your children first period. You can talk to your attorney, your child's school, or any other resources that you have to learn about any groups that may be able to support you in your efforts to raise your child to the best possible extent.

What are your plans when it comes to the future of your children?

Having a plan means being intentional; being intentional means considering the current circumstances of your children and their future needs. If you have well-thought-out plans for your children, then you should express those if called upon. Remembering this factor can be a big deal when facing the questions and investigation conducted by a guardian ad litem.

To go back to what we discussed in this section before this one, if your child has a physical or emotional need that needs to be promoted and dealt with, then your ability to Tap into those resources and I would plan developed. How to work with your children, their counselors, doctors, and teachers would be a great way to evidence a plan for your children's future. Indeed, since every child is different, you will need to display a program tailored to your child's needs. However, having a plan at all may give you a leg up on your spouse or Co-parent.

How stable is your home environment?

A family court judge will be interested in knowing how stable your home environment is. How long have you lived in your current home? Does anyone else live there with you beside yourself? What is it what is your employment circumstances look like? Has your child become accustomed to your home and how you run your household? These are the sort of factors that a family court judge would look to when assessing the best interest of your child. If you are constantly bouncing from home to home and have trouble paying the bills, this is not a factor that will likely turn out well.

Otherwise, a judge would like to any acts or omissions in your past that may indicate that you are not well suited to be a primary conservator or serve in any other capacity as a conservator for your child. An act would be something that you actively did that could have harmed your child physically or emotionally. An omission is the failure to do something that could have damaged your child. A family court judge will balance these factors against one another when making best interest determinations for your child.

Closing thoughts on guardian ad items in family law cases

As I mentioned to you earlier, it is far from a given that a guardian ad litem plays a role in your particular case. However, it is relevant for you to understand their role and anticipate what they may be doing when making recommendations to a family court judge. Specifically, understanding the factors that we just went over can play a significant role in helping you anticipate what these people will be looking for when it comes to decisions made by a family court judge.

While you cannot control every circumstance in your case, understanding the factors that a family court judge will look to when making best interest to terminations is a crucial period; furthermore, if a guardian ad litem is involved in your case, then you can rest assured that this person will be aware of these same circumstances and will be viewing your ear case through the prism of what is in the best interest of your child.

Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are an excellent way for you to learn more about the world of Texas family law and how your family circumstances may be impacted by the filing of a divorce or child custody case.

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